Did EPA exercise independent judgment, as required by Sec. 202 of the Clean Air Act (CAA), when it determined that greenhouse gas (GHG) emissions endanger public health and welfare? Or did the agency improperly outsource its judgment to third-party assessment reports, such as those produced by the UN Intergovernmental Panel on Climate Change (IPCC)?
This is a key bone of contention in Coalition for Responsible Regulation v. EPA, a case before the D.C. Circuit Court of Appeals, in which petitioners seek to overturn EPA’s GHG regulations.
Tonight (September 30), the Coalition for Responsible Regulation filed a motion asking the Court to “take judicial notice” of the EPA Inspector General’s (IG’s) recent report, Procedural Review of EPA’s Greenhouse Gas Endangerment Finding Data Quality Processes, and EPA’s comments thereon (Appendix G). Those comments appear to contradict EPA’s legal position that, in developing the Technical Support Document (TSD) for its Endangerment Rule, EPA conducted an independent review of the science, as required by the statute.
In its brief to the Court and elsewhere, EPA unequivocally rejects the criticism that the only judgment it exercised was to trust the judgment of non-agency scientific “authorities.” For example, in denying petitions for reconsideration of the Endangerment Rule, EPA asserted (p. 49581):
EPA did not passively and uncritically accept a scientific judgment and finding of endangerment supplied to it by outsiders. Instead, EPA evaluated all the scientific information before it, determined the current state of the science of greenhouse gases, the extent to which they cause climate change, how climate change can impact public health and welfare, and the degree of the scientific consensus on this science. . . .EPA properly and carefully exercised its own judgment in all matters related to the Endangerment Finding.
Similarly, in its brief before the Court, EPA stated (p. 54):
Although the scientific assesments reviewed by EPA provided the principal source materials for the Endangerment Finding, the Administrator exercised her own judgment in making that finding.
However, EPA’s comments to the IG put the TSD is a different light. The IG faulted EPA for not following the strictest standards of peer review in developing the TSD. Specifically, EPA failed to publicly report the views of the agency’s 12-member peer review panel. More critically, one member of the panel was an EPA employee, compromising the panel’s independence. EPA argued that publication of panelists’ views and full independence were unnecessary, because the TSD was not a “highly influential scientific asssessment.” Indeed, according to EPA, the TSD was not even an assessment. From the IG report (p. 23):
EPA stated that the TSD is not a scientific assessment, but rather a document that summerized in a straightforward manner the key findings of NRC [National Research Council], USGCRP [United States Global Change Research Program], and IPCC [Intergovernment Panel on Climate Change].
The IG concluded, on the contrary, that the TSD was not only a scientific assessment, it was also ”highly influential.” The Office of Management and Budget’s (OMB’s) Peer Review Bulletin defines “scientific assessment” as “an evaluation of a body of scientific or technical knowledge that typically synthesizes multiple factual inputs, data, models, assumptions, and/or applies best professional judgment to bridge uncertainties in the available information” (p. 2). The TSD synthesizes the findings, conclusions, and other information in the IPCC, USGCRP, and NRC assessments. So is a synthesis of other organizations’ assessments an assessment or not?
The IG asked OMB “whether a document summarizing existing findings or conclusions of other peer-reviewed scientific assessments, but not offering any new analysis or conclusions, would meet OMB’s definition of scientific assessment. . .” OMB replied (p. 17):
An annotated bibliography would generally not be considered a scientific assessment; however, a document summarizing the “state of the science” would be, as it implicitly or explicitly weighs the strength of the available evidence.
OMB’s Peer Review Bulletin states that a scientific assessment is ”highly influential” if it ”could have a potential impact of more than $500 million in any one year on either the public or private sector,” or ”is novel, controversial, or precedent setting, or has significant interagency interest.” Greenhouse gas regulations based on the TSD could easily exceed $500 million in annual costs. The associated Endangerment Rule is among the most novel, controversial, and precedent setting rules in recent history. It has significant interagency interest, since the Endangerment Rule positions EPA to regulate fuel economy, a responsiblity Congress delegated to the Department of Transportation.
Yet EPA maintains that the TSD is not an assessment. EPA told the IG (p. 54):
No weighing of information, data, or studies occurred in the TSD. That had already occurred in the underlying assessments, where the scientific synthesis occurred and where the state of the science was assessed. The TSD is not a scientific assessment, but rather summarized in a straightforward manner the key findings of the NRC, the USGCRP, and IPCC. [Emphasis added].
It seems that EPA, to avoid fessing up to a procedural foible, has unwittingly acknowledged a serious statutory breach, leaping from the frying pan into the fire. EPA cannot reasonably tell the Court that the Endangerment Rule is based on a genuinely independent scientific review if, as petitioners put it, the agency ”had not weighed and sifted the science, but simply assembled a literature review compiled by others wherein such weighing and sifting had ‘already occurred.’”
What EPA told the IG inadvertently casts doubt on the Endangerment Rule’s scientific and legal bona fides. Indeed, petitioners ask:
But if EPA is correct that it did not weigh and sift data, as the Act requires, since that work had already been performed outside EPA, then what position is the Agency in to assert that the underlying science is substantively or procedurally sound? How could it know?
EPA, it would seem, has flouted both OMB’s information quality standards, which require rigorous peer review for “highly influential scientific assessments,” and the CAA, which requires independent judgment in producing such assessments.
Depending on whether it is communicating with the Court or the IG, EPA has taken diametrically opposing positions on whether weighing and sifting the science was performed inside or outside the Agency and by the Administrator or by unaccountable domestic and foreign officials.
It will be interesting to see how EPA tries to reconcile its claim to the IG that it did not weigh the information, data, or studies summarized in the TSD with its claim to the Court that the Administrator exercised her own judgment in making the endangerment finding.
* Full disclosure: The Competitive Enterprise Institute is a petitioner in Coalition for Responsible Regulation, Inc. et. al. v EPA.